(703) 369-4738

3
May
2022

New District Court Case Limits Application of Attorney-Client Privilege in Workplace Investigations Conducted by Counsel

Written by: Monica Munin, Esq.

The United States District Court for the Western District of Virginia released a published opinion granting (in part) a plaintiff’s motion to compel seeking the release of an employer’s communications and investigation report with counsel regarding a complaint of sexual harassment.  The motion also sought information from counsel regarding what advice the employer received from counsel regarding “how to structure” the plaintiff’s termination. The motion was denied with respect to the attorney’s communications with counsel regarding the plaintiff’s termination and granted with respect to the communications relating to the investigation of the plaintiff’s sexual harassment claims.

The case involves a woman employed by the Town of Front Royal, Virginia (“the Town”) who complained of repeated instances of sexual harassment perpetrated by a colleague, William Sealock.  According to the plaintiff, she met with the Human Resources Department in August of 2019 to discuss her complaint following conversations she had had with other Town employees regarding repeated instances of unwanted touching and inappropriate remarks despite telling Sealock that the comments and touching were unwanted. Human Resources told the plaintiff she would hear back within two weeks following the completion of an investigation. The plaintiff did not hear from Human Resources or anyone from the Town, however, until November 2019. According to the plaintiff she had to repeatedly request updates on the status of the investigation and sought help from the Town to alleviate the harassment and retaliatory conduct she was suffering since reporting the sexual harassment. The plaintiff alleges that the investigation report in the matter was “wholly dismissive of her complaints (to the extent they were investigated at all) and [was] indicative of a sham investigation.” The plaintiff went on medical leave in December 2019 and was terminated upon returning to work on January 30, 2020. The plaintiff alleges that the Town’s stated reason for her termination, that her job was subject to “right-sizing” was a pretext for sex-based discrimination and retaliation. The plaintiff initially filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) before bringing suit against the town for violations of the Family Medical Leave Act (“FMLA”), as well as violations of Title VII of the Civil Rights Act of 1964.

Specifically, the plaintiff alleged sex-based discrimination, unlawful retaliation, and retaliatory hostile work environment in addition to her allegations that FMLA was violated. Shortly thereafter, the plaintiff filed a motion to compel, claiming that the Town had put the advice provided by the attorney hired to conduct the investigation in issue, thereby waiving attorney-client privilege over the communications. During depositions, the Town’s representative testified that Julie Judkins was hired “to make sure that everything in the investigation, and later in the firing of [the plaintiff] was done to ensure it was legal.” The plaintiff’s motion sought the release of “information and documents underlying Ms. Judkin’s involvement in both the investigation of [the plaintiff’s] harassment and retaliation complaints and in the termination of [the plaintiff’s] employment.” During depositions, the Town’s attorney had refused to allow Ms. Judkin (the Town’s counsel) to respond to a question asking if “Ms. Judkin’s advised the town how to end the plaintiff’s employment with the Town.” When asked why the Town had hired Ms. Judkins, the Town’s reply was “to advise Town council as it relates to a complaint that was made by [the plaintiff].” The Town representative’s deposition indicated that the investigation into the plaintiff’s allegations was “conducted by [Human Resources] and counsel” and that “if legal counsel and the [Human Resources] Department had concluded that there was sexual harassment or retaliation or a hostile work environment, he without a doubt…would have encouraged Council to take all the appropriate action afforded to us by law.” The Town’s representative further testified (after being asked to opine if the plaintiff’s allegations, assuming they were true, violated the company’s sexual harassment policy) “that would be up to the investigative body, in this case, it was the [Human Resources] Director in conjunction with legal counsel, to draw that legal conclusion of what that was harassment or not…” The Town had asserted privilege over its communications with the attorney that conducted the investigation as to the communications regarding the investigation, any advice sought regarding how to structure the plaintiff’s termination, and any advice regarding the conclusions of the investigation and remedial action recommended thereafter. The Town’s argument against waiving privilege is that it had not raised “reliance on the advice of counsel” as a defense in the case.

The Court held that the Town “put Ms. Judkin’s involvement in the investigation of [the plaintiff’s] internal complaints at issue but had not put ‘at issue’ her advice regarding Brown’s termination.”  In granting the plaintiff’s motion with respect to the attorney’s involvement in the investigation, the Court noted “[the Town] essentially turned the investigation of the plaintiff’s charges over to the attorney, and it was counsel who assembled the facts, drew the conclusions, and constructed the remedial response…under those circumstances, to prevent plaintiffs from discovering what was done by counsel and why, would be tantamount to giving the defendants both the ‘sword’ (i.e. the argument ‘that we were reasonable because we had our attorneys investigate the charge and craft a response’) and the ‘shield’ (i.e. what our attorneys did and why they did it, is privileged’).”  The Court found that the information sought by the plaintiff was “likely to speak directly to whether the defendants had actual knowledge of all the circumstances surrounding the allegations and whether their response to such allegations was clearly unreasonable.” It was the town’s reliance on the attorney to assist with the investigation and advice about what remedial measures were necessary, if any, that put the Town’s communications with counsel at issue in the case. The Court thereafter permitted the plaintiff to depose the Town’s counsel to an inquiry “[limited to] knowledge concerning the investigation and actions taken by the defendant in response to plaintiffs’ allegations.”  With respect to the plaintiff’s assertion that the Town had put communications with counsel at issue regarding the plaintiff’s termination and had waived privilege by stating in its EEOC position statement that counsel was hired to “ensure compliance with the law,” the Court found that attorney-client privilege had not been waived and the plaintiff could not depose the town’s counsel regarding that issue.”

The case underscores the delicate balance clients and attorneys must strike when seeking to investigate and address allegations of discrimination in the workplace.  It is vitally important to work with an attorney knowledgeable not only about the employment law statutes at issue but also skilled in ensuring that protected communications are not put into an issue where an employer would prefer to maintain confidentiality. 

Questions or concerns about this case? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

14
Feb
2022

Employment Legal Affairs Update

Written By:Kristina Keech Spitler, Esq.

COVID-19 Legal Update

Businesses continue to have challenges in dealing with the Covid-19 virus’ impact in the workplace, figuring out how to comply with the many changing laws and regulations, and trying to work with people with divergent views of what constitutes the “correct” actions for a business or school to take in response.  Here are some recent developments regarding Covid-19 in the workplace:

U.S. Supreme Court

On January 13, 2022, in combined cases, National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al. and Ohio, et al. v. Department of Labor, Occupational Safety and Health Administration, et al., 595 U. S. ____ (2022) 7, the U.S. Supreme Court stayed (pending further judicial review) the emergency temporary standard (“ETS”) issued by the federal Occupational Safety and Health Administration (“OSHA”) which required employers with 100 or more employees to develop, implement, and enforce a mandatory Covid-19 vaccination policy. The Court stated in response to the argument that the risk of contracting Covid-19 qualified as a “work-related danger” within the meaning of the Occupational Safety and Health Act:

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The Court, however, further provided:

“That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

On January 13, 2022, the Supreme Court, in a separate decision, allowed the federal Centers for Medicare & Medicaid Services (“CMS”) to require Covid-19 vaccinations for health care workers at Medicare-and-Medicaid-certified providers and suppliers.

OSHA

Following the Court’s decision above, OSHA withdrew the ETS.

Now that private-sector employers with 100 or more employees do not have to comply with OSHA’s ETS, they, like smaller employers, still have the challenge to deal with the impact of Covid-19 on their workforce and in their businesses.  They still need to comply with state and local regulations and take reasonable precautions to protect their employees in the workplace. Employers (other than Medicare-and-Medicaid-certified providers and suppliers) may decide on their own whether they want to require vaccinations and/or testing as it is neither required nor prohibited.

 Virginia’s Permanent Standard for Infectious Disease Prevention – Still in Effect

Virginia was the first state to enact its own emergency standard to deal with Covid-19 in the workplace.  The Virginia Safety and Health Coded Board, under the Virginia Department of Labor and Industry (“DOLI”) subsequently amended the regulation making it permanent: 16 VAC 25-220 entitled “VOSH Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19” enacted August 26, 2021, and effective September 8, 2021.  It established requirements for employers to control, prevent, and mitigate the spread of the virus to and among employees and employers including having certain policies and procedures, training for employees, required actions by the employer if an employee has Covid or been exposed to Covid, reporting requirements to DOLI and the Virginia Health Department, and certain sanitation, disinfecting, and ventilation procedures. The standard also requires that “Employers shall provide and require employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work requires a respirator or other PPE” with some limited exceptions.

This permanent standard is still in effect as of February 9, 2022. However, this regulation is being re-evaluated at the direction of newly elected Governor Youngkin. This may change the playing field again for businesses.  According to the article, Virginia Could Kill Its First-in-U.S. Workplace Covid-19 Measure, by Bruce Rolfsen, in Bloomberg Law,  “Since the standard became enforceable, Virginia OSHA has found violations at about 50 employers. Businesses cited include car dealerships, department stores, and social service agencies, according to enforcement records.”

Recent Covid-19 Developments under Governor Youngkin

Governor Youngkin has taken several actions relating to Covid-19 including rescinding and/or changing certain vaccine and masks requirements. In his Executive Directive #2, he rescinded the vaccine mandate for all state employees.

In Governor Youngkin’s Executive Order #2 (“EO #2”), he rescinded former Governor Northam’s Executive Order #79 (2021 dealing with Covid-19), ordered the State Health Commissioner to terminate Order of Public Emergency Order Ten (2021); and provided that parents may elect whether their children wear a mask at school. The question of whether a school board can require students to wear masks at school, parents’ right to determine what is best for their children, and whether the Governor has the authority to make such an order is another highly divisive Covid-19 issue. There are several lawsuits filed against the Governor regarding the student mask issue. On February 4, 2022, an Arlington Circuit Court Judge granted a temporary restraining order against Gov. Youngkin’s EO #2 regarding masks at school in a case brought by seven school districts, including Prince William County. Governor Youngkin’s office indicated that it would appeal.  In addition, another lawsuit has been filed in federal court by parents of children with disabilities in Virginia’s public schools challenging Governor Youngkin’s EO #2.  As the issue of mandated vaccines may be receding based upon recent developments, it appears that the issue of requiring masks may be the next challenge for businesses and schools (for employees and students).

Given that Virginia’s Permanent Standard noted above requires employers to provide and require employees to wear masks at work in various situations, it will be important to follow what happens in response to the Governor’s Executive Order #6.

In Executive Order #6 (“EO #6”), Governor Youngkin directed:

  1. The Safety and Health Codes Board is to convene an emergency meeting of their membership to discuss whether there is a continued need for the “Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19.” The board is directed to consider federal action in regard to the Occupational Safety and Health Administration Emergency Temporary Standard. The Board should report its findings to the Governor within 30 days.
  2. The Board and the Department of Labor of Industry is directed to seek guidance from the Office of the Attorney General regarding whether the proper legal and administrative procedures were followed during adoption and promulgation of the Permanent Standards.
  3. As a matter of enforcement discretion, all Virginia Agencies of the Commonwealth under my authority are directed to focus their limited resources on enforcement activities that have the most impact with the least burden on our business and citizens.

An emergency meeting of the Safety and Health Codes Board was scheduled for February 7, 2022. However, the meeting has been rescheduled to February 16, 2022. Stay tuned for what may change for businesses as a result of the Virginia Safety and Health Codes Board meeting and report to the Governor regarding Virginia’s Permanent Standard.

Kristina Keech Spitler heads the Employment Law practice at VFN, where she and her team advise businesses and municipalities in managing their most important asset – their employees.  If you have additional questions or concerns, contact Kristina Keech Spitler, Esq directly at kspitler@vfnlaw.com or call us at 703-36-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer[/vc_column_text][/vc_column][/vc_row]

24
Jan
2022

Labor Reforms Targeted as Virginia Prepares for a Change in Administration

Written by: Monica Munin, Esq.

Republican governor Glenn Youngkin assumed office on January 15, 2022, enacting 11 executive orders including orders that; end mandatory masking for children in grade K-12; ban critical race theory from state classrooms; promise to “investigate wrongdoing” in Loudoun County Public Schools; and, promise to cut workplace regulations.  Consequently, the fate of recent labor reforms in Virginia, including a scheduled increase to the State’s minimum wage, domestic workers bill of rights, and the COVID-19 emergency standard, remains uncertain.  Republicans swept the State’s elections this year, claiming the governor’s office, lieutenant governor’s office, attorney general’s office, and a majority in the House of Delegates. Youngkin cast himself as an employer-friendly candidate who would eliminate “job-killing regulations” and oppose government lead vaccination mandates.

While it is not yet clear how far Republican can or will go to stem or otherwise reverse the policies implemented during the Governor Northam’s administration, Youngkin has wasted no time preparing for a change in priorities.  In addition to the 11 executive orders signed on his first day in office, Youngkin delivered an address outlining his plan for education and tax reform.  Prior to his swearing in, Youngkin had also announced that he intends to appoint George “Bryan” Slater, as state labor secretary.  Slater was a former U/S/ Labor Department official under the Trump administration and served as White House liaison to the Labor Department under President George W. Bush as well. Democrats currently retain control of the State Chamber, which is not up for reelection until 2023.

Nonetheless, incoming Republicans in the State legislature are hoping to capitalize on Youngkin’s win and pass a number of bills, including a freeze on the scheduled increase to the state’s minimum wage which would keep the minimum wage at $11, bills limiting domestic worker protections, and bills intended to prevent cities and counties from using government contracts to ensure wage rates and employee benefits beyond what is currently required by state or federal law.

Worried about what the change in administration means for your business? Confused about how to proceed? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

26
Oct
2021

Immigrants First Joins VF&N!

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce that Ms. Lisa Shea (formerly Lisa Johnson-Firth) and the lawyers and staff of Immigrants First, PLLC have joined our firm.

Ms. Shea has focused her practice in immigration law for 20 years.  As a nationally recognized leader in immigration law, she has used her immigration expertise to win hundreds of cases for her clients, as well as inform and advocate before government and community leaders, judges, and lawyers.  Ms. Shea has been instrumental in significant policy changes and is a 2021 Prince William County Universal Human Rights Award recipient.  She has been an adjunct professor of law at Georgetown University Law Center and George Mason University and has served on various nonprofit boards of directors.  Ms. Shea will head up the new Immigration Practice Group to serve clients in all areas of immigration law, including family, employment, removal defense, and humanitarian-based cases, as well as continuing to be an expert resource to the broader community on immigration issues.

Vanderpool & Nishanian, P.C. has served clients for over 35 years in the areas of business, commercial real estate, litigation, lending, intellectual property, employment, land use and zoning, municipal, and criminal defense law.  Our firm is excited to now offer immigration law solutions to our clients

Lisa Shea (formerly Lisa Johnson-Firth)
Shareholder

6
Oct
2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

Marijuana became legal in Virginia for the first time in July 2021. 

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.  

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.   

What is now Legal?

  • Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
  • Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
  • Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
  • “Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

  • It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
  • It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
  • It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
  • Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
  • It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

  1. ensure that no plant is visible from the public;
  2. take precautions to prevent unauthorized access by persons younger than 21 years of age; and
  3. attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C.

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

29
Sep
2021

Part 4: The Production and Sales of Cannabis in Virginia

 

The Production and Sales of Cannabis in Virginia

This article provides a high-level overview of the new legal landscape in Virginia related to the production and sale of cannabis and the opportunities out there for entrepreneurs.

For perspective, the Virginia General Assembly has only approved four (4) companies to legally process pharmaceutical cannabis for medical use, with one additional permit authorized, but unissued. The cultivation of hemp is currently allowed under a regulated process. And as of July 1, 2021, personal consumption and home cultivation of marijuana have been decriminalized to a large extent on the state level here in Virginia. Notably, the use, sale, and possession of cannabis over 0.3% THC in the United States remain illegal under federal law, despite laws in many states permitting it under various circumstances.

Cannabis PlantWhile all of this represents progress, in the overall push for legalization, we are still years away from state legalization of the production and sale of retail cannabis. For those interested in participating in this budding industry, keep in mind that you will need a license issued by the Cannabis Control Authority, which many anticipate will be much more challenging to obtain than an alcohol license.

The specific requirements for those license applications will not be disclosed publicly until July 1, 2022, with the first applications expected to be accepted July 2023 and retail sales expected to finally become legal in 2024. So while two years may seem like a long way away, if you are interested in being competitive in the license application process, you need to start positioning yourself now.

The state is likely to issue less than 1,000 licenses, which will be split between certain levels of the cannabis industry. It is anticipated that there will be 450 licenses available for cultivators, 60 for product manufacturers, 25 for wholesalers, and 400 for retailers. The application process is expected to favor applicants who demonstrate social equity, public health, and public safety priorities.

While this certainly provides some reason for optimism for those hoping to play a part in the industry, it’s important to remember that the regulatory framework and path towards legalization does not become effective until the future General Assembly and Governor approve the legislation in 2022. That said, if you are serious about getting a permit and being on the front end of the marijuana industry boom in Virginia, it’s important to surround yourself with professionals that can make your vision a reality. One of the old rules of thumb for aspiring entrepreneurs is to surround yourself with a decent lawyer and a good accountant.

VFN is one of the most highly regarded law firms here in Northern Virginia, with seasoned and well-connected attorneys who can help you establish your position in this state’s cannabis industry. Our services will be invaluable to clients, who will need to

  1. Establish a legal entity and presence here in the Commonwealth to become a qualified applicant;
  2. Obtain financing through investor relationships and/or financial institutions to secure required capital to be considered for licensure;
  3. Purchase the real estate and secure proper zoning and approvals required for your business
  4. Create solid commercial sale/purchase contracts to ensure payment and minimize risk exposure; and
  5. Establish employment procedures to ensure your business runs smoothly.

I have already been advising clients on how to prepare themselves for the permit application process for the past few years, which has been an exciting and engaging experience for me. I am excited to see what the future holds in this new industry and to be working with clients on the front lines. If you need me or want more information, please feel free to give me a call at 703.479.3181, reach out to me by email at TBlaser@VFNLaw.com, or visit my attorney page at https://www.vfnlaw.com/portfolio/tyler-j-blaser/.

24
Sep
2021

Threat to Broadband Expansion

 

Threat to Broadband Expansion

In Grano v. Rappahannock Electric Cooperative, Judge Moon of the Federal District Court made preliminary rulings about a new Virginia law that allows electric utilities to put broadband cables in existing electrical easements.

The facts are these: A new state law in 2020 granted electric utilities like Rappahannock Electric Cooperative the power to install broadband cables in existing electric line easements, regardless of what the easement deed says. The same law limited the kind of compensation that property owners can receive if that happened. Rappahannock proposed to buy the right to install broadband on the property of John and Cynthia Grano, but couldn’t agree on terms with them. Rappahannock never installed any broadband on the Granos’ property but asserted that it could if it wished.

Judge Moon’s opinion found that the Granos’ claims said many of the right things to move forward in Federal court. For example, Judge Moon decided that the Granos had properly alleged they suffered actual harm when the new law took effect in 2020 and that the new law did not provide an adequate remedy for any harm that they suffered. There is little analysis in the opinion about why the new law – which allows property owners to file a claim for trespass – is inadequate, but the opinion points to the fact that the new law limits the amount of money that property owners can get if they win their case. (Lots of other laws limit the amount of money courts can award for different kinds of cases; Virginia has caps on medical malpractice claims and punitive damages, for instance).

Ultimately, Judge Moon ruled that two of the Granos’ three claims had to be dismissed because Rappahannock did not take any action to exercise its rights under the new law. One peculiar feature of Judge Moon’s ruling is that it says that the third claim should have been dismissed as well, but Judge Moon did not dismiss that claim. The third claim was for unconstitutional impairment of contracts, and footnote 8 points out that such a claim cannot be brought under the federal statute that the Granos used as a basis for their suit. Rappahannock asked the court to dismiss the third claim, but for a different reason.

The case continues to move forward. The Virginia Attorney General has filed notice of his intent to intervene as a party in order to defend the law.

Please contact Martin Crim, mcrim@vfnlaw.com or 703-618-3205 should you have any questions or need assistance. [/vc_column_text][/vc_column][/vc_row]

22
Sep
2021

Part 2: What Constitutes Relief for the use of Cannabis Oil!

 

What constitutes relief for the legal or lawful use of cannabis oil?

The new law statute talks explicitly about what happens when somebody needs to have medical cannabis oil. One thing they must do, is they have to possess an unexpired written certification from a practitioner (which could be a doctor or a nurse practitioner.) Someone who’s usually allowed to write prescriptions. They must be registered with the board of pharmacy, and it’s not just any doctor. Anybody who is writing certifications for cannabis oil must be registered with the board of pharmacy.

In addition, once they have their written certification, the patient must register with the board of pharmacy. What they do now with their written certification is they go to a registered medical cannabis pharmaceutical processor, distributor, or dispensary. In the Commonwealth of Virginia, there are only five that have the authorization, and they’ve been spread out throughout the Commonwealth to have it around all the various parts of the state. Prince William County has one dispensary that has been approved, and that is located here in Manassas. It’s called Beyond Hello.

What if you’re an employer and believe the lawful use of cannabis oil impairs the employee’s work?

The new law talks about: What if the employee who needs the medical cannabis oil brings that oil with them to work; what are the employer’s rights under that circumstance? The law is very clear that employers with employees who are lawfully using cannabis oil still retain the ability to take adverse employment actions. That means you can discipline them, fire them, talk with them about the issues for any work impairment caused by using the cannabis oil.

Suppose the employee comes to work and is not performing their work and believes it’s associated with the use of cannabis oil. In that case, the employer can, in fact, discipline them or take adverse action, up to and including termination, based on the facts and the evidence you have at the time. Employers can also prohibit the possession of cannabis oil during work hours.

Even if the employee has a written certification, the employer can say that we do not want cannabis oil on our work premises, even though you have it lawfully.

What if you are a federal contractor or depend on federal funding? How does that impact you now with the new Virginia law and lawful use of cannabis oil?

Again, Virginia law has addressed this. It specifically says that for those who are federal contractors or subcontractors with employees who are using cannabis oil lawfully, they are not required to commit any act that would cause the employer to be in violation of any federal law or result in the loss of federal contract or federal funding. So, again, you do not have to do anything that would jeopardize your status as a federal contractor or subcontractor.

What if you are an employer in the defense industrial-based sector, which talks about the military department of defense, or you’re dealing with them as a federal contractor or subcontractor?

What can you do regarding this new Virginia law? The statute specifically says that defense industrial-based sector employers or prospective employers (meaning that you’re looking at hiring somebody, but you’re still in that sector) are not required to hire or retain any applicant or employee who tests positive for THC in excess of 50 milligrams for the urine test, 10 milligrams for the hair test. So, you do have some rights to limit your exposure. The reason for this is that you don’t want someone who may be impaired while on the job.

An employer to make sure they still have a safe work environment. If you have concerned somebody who may be under the influence of lawful cannabis oil, you probably should seek counsel to address how to handle this matter lawfully. You’ve got to balance the competing laws.

What can employers do in the application process?

As an aside, I will say that the EEOC says if you are an employer with 15 or more employees, you are covered by the federal law Title VII of the civil rights act of 1964. There are provisions that talk about the protection of employees and make sure that if you’re going to do a background check, it doesn’t violate or create an implicit bias. There is guidance, and if you want to look upon the EEOC, it talks about criminal history checks. There is a perception, and I think supported by evidence, that those who are Hispanic or African American, particularly males, were disproportionately impacted by the laws. Suppose you are doing background checks and don’t have a reasonable basis for saying there’s a reason to exclude someone with that criminal background. In that case, it may result in potential exposure to liability for that.

Where we are right now is the issue of doing background checks related to the new law in Virginia?

It specifically says employers and educational institutions are prohibited from requiring an applicant to disclose information related to any arrest, criminal charge, or conviction for any decriminalized possession of marijuana. So, what this is doing is it is resulting in an employer saying, listen, I’m just not going to even ask for background if there’s any marijuana charges or charges related to marijuana? I think people are wrestling with that right now. What do they want to do as part of their process going forward?

Some employers are saying, listen; I don’t know that I really care whether they used marijuana when they were in college or whether they used marijuana ten years ago. Do they care maybe if they used marijuana last week? Well, maybe some do, maybe some don’t. There are businesses that you know have a philosophy that says I don’t care what you do on your personal time. In Virginia right now, no law addresses that. Some states do have laws that address limitations on employer’s rights to limit people’s personal time. What they do on their personal time, in Virginia, there is no law on it, but what they’re suggesting here is that you can’t require an applicant to disclose that information if it’s an arrest, criminal charge, or conviction for any decriminalized possession of marijuana.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance[/vc_column_text][/vc_column][/vc_row]

31
Aug
2021

Part 1: Medical use of cannabis oil, what the new law says!

Virginia’s new law that prohibits employers from discharging, disciplining, or discriminating against an employee for the employee’s lawful use of cannabis oil.

Virginia recently enacted a new law that makes it unlawful for employers to discharge, discipline or discriminate against an employee for the employee’s lawful use of “cannabis oil.”  In order for the use to be lawful, it must be obtained pursuant to a valid written certification issued by a medical practitioner, who has registered to write such certifications with the Board of Pharmacy, for the treatment or to eliminate the symptoms of a person’s diagnosed conditions or disease. In addition, the patient with the certification must also register with the Board of Pharmacy as well as obtain the cannabis oil from one of the five registered medical cannabis pharmaceutical processor dispensaries in Virginia.  In the event that an employer has an employee that has a medical condition for which they have lawfully obtained cannabis oil pursuant to the above-described process, the employer may not discharge, discipline or discriminate against such employee for the employee’s lawful use of cannabis oil.  It is important to note that the new law does not protect those who are using cannabis products recreationally or who are using cannabis products for medicinal purposes but have not complied with the proper procedures required by the law.

CBD Oil Chemical markersThat leads us to the next question – what is Cannabis oil?

The new law defines cannabis oil as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of a Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose.” As the purpose of the Cannabis Oil under this law is to treat medical conditions, the law is very specific as to the content of cannabis products.

Cannabis oil should not be confused with CBD products available without a prescription and represented as having low amounts of THC. You can go to stores now where you may have CBD oils or cannabis products that are the kind that are not controlled and regulated by a medical cannabis pharmaceutical processor dispensary as part of a medicinal remedy. The use of these cannabis products are not what this law is intended to protect. If you have somebody who goes to a local store and buys some CBD product and then ends up in some circumstance where they test positive for marijuana, that’s not protected. It is the use related to medicinal use and only if the proper procedures are followed.

If an employee’s work is impaired by the use of medicinal cannabis, Employers may still take adverse action.

Employer’s still retain the ability to take adverse employment action against an employee with a medical certification if the employee’s work is impaired caused by the use of cannabis oil.  Employers may also prohibit possession of cannabis oil during work hours.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance[/vc_column_text][/vc_column][/vc_row]

4
Aug
2021

New Associate Joins VF&N

Monica Munin
Associate

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce the addition of our newest associate Monica Munin. She is currently licensed and authorized to practice law in the District of Columbia. Her practice includes employment law as well as litigation.

Prior to joining VF&N, Ms. Munin worked as an associate at Brustein & Manasevit PLLC in Washington, D.C, where she specialized in administrative litigation and compliance consulting for Local Education Agencies (LEAs) as well as State Education Agencies (SEAs). Prior to obtaining her law license, Ms. Munin served as an intern for the Honorable William Jarvis in Prince William General District Court as well as a paralegal for a general practice law firm in New York City.